Effective May 1, 2022, the U.S. Department of Homeland Security (DHS) is terminating its temporary policy of allowing employers to accept expired List B identity documents for I-9 purposes. As background, DHS and U.S. Immigration and Customs Enforcement (ICE) announced on March 19, 2020 that they would allow employers whose workforce was working remotely to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) and section 274A of the Immigration and Nationality Act (INA). As part of its I-9 flexibility policy, DHS also allowed employers to accept expired List B identity documents.
According to the DHS announcement, employers must resume accepting only List B documents that are unexpired beginning on May 1, 2022. Employers are required to update the I-9s of current employees who presented an expired List B document during the May 1, 2020 to April 30, 2022 effective period of the temporary policy. The deadline for updating these I-9s is July 31, 2022. No action is required for such employees who are no longer employed with their employer. In addition, no action is needed if the List B document was automatically extended by the issuing authority, so that it was unexpired when presented.
To update the I-9, the employee must provide an unexpired document establishing identity – either a renewed version of the expired List B document, or a different, unexpired List B document, or an unexpired List A document. In the “Additional Information” field in Section 2 of the I-9, the employer must enter the Document Title, Issuing Authority, Number, and Expiration Date, and must initial and date the change. Please refer to the following sample of an updated I-9, which can be found in the DHS announcement.
Please note that the DHS announcement does not address the flexibility relating to in-person Form I-9 compliance, which is currently in effect until at least April 30, 2022. This flexibility allows employers whose entire workforce is working remotely to defer the physical presence requirements associated with Form I-9 and section 274A of the INA. In addition, it applies to employees hired on or after April 1, 2021, who work exclusively in a remote setting due to COVID-19-related precautions.
Under this flexibility, qualifying employers are not required to review employees’ identity and employment authorization documents in person, and may instead inspect these documents remotely, using “video link, fax or email, etc.” Employers must also comply with document retention and re-verification requirements discussed in more detail here.